Gun-Toting Couple Sues Photographer For Privacy Violation Over Photo They Used As Christmas Cards, After He Billed Them

You've heard of Mark and Patricia McCloskey by now. They are the St. Louis couple who waved guns at various protesters who entered their gated street in the process of marching to the nearby mayor's home, demanding the mayor's resignation. The McCloskeys seem to have quite the reputation as not the greatest of neighbors, and seem to have very strong opinions about their property.

The pictures and videos of the couple waving guns around dangerously at protestors got lots of attention, and they were indicted last month -- though Missouri's governor has indicated that he would pardon the couple if convicted. The McCloskeys have leaned into their newfound national fame, and even spoke at the Republican National Convention this past summer.

In late September, the couple was confronted by more protestors as they left a printshop. As they went to leave, Mark McCloskey handed one of the protestors what they were apparently picking up at the shop: Christmas cards with one of the famous photos of themselves and pointing their guns at protestors, captioned as "Patty & Mark McCloskey v. The Mob."

The main photo that was taken was taken by UPI photographer William Greenblatt, and a few weeks ago, UPI announced that it was "looking into" the issue. Then, last week, it came out that Greenblatt had decided to send the couple a bill for $1,500 for their use of the photo.

The letter reads:

Dear Mr. and Mrs. McCloskey:

My name is William Greenblatt, a photographer with United Press International here in St. Louis.

It has been brought to my attention that one of my images of you during the June 28, 2020 event at your home, is now serving as a Christmas card.

I did not grant permission for this to be used in this manner. Downloading images to use as needed is clearly a violation of the National Copyright Act.

I am in the business of selling images. I do not give them away for free.

Enclosed you will find an invoice for $1500.00, a normal charge for an image such as yours. Al Watkins suggested I send this invoice to you.

Thank you in advance for your understanding of this matter.

This actually set off a bit of a debate here at Techdirt over whether or not the use by the McCloskeys was fair use. We remain somewhat divided on this. As Cathy Gellis has pointed out, fair use should allow a family to, say, clip a photograph of their child doing something cool in the newspaper and use it as part of their holiday greetings cards. However, news organizations do actually tend to license their photos, so I think there's a decent argument that this wouldn't survive the four factors fair use test. It doesn't seem particularly transformative. It uses the entirety of the work. It's not for commercial use but (unfortunately!) that's not that big a deal in the fair use analysis. And, photographers and news organizations regularly do license their works for promotional materials, so there's a decent argument to be made that it could diminish the market (though, admittedly, it's not entirely clear how large a market there is for this particular photograph). It does not appear that Greenblatt consulted a lawyer in sending this (calling it "the National Copyright Act" sort of gives that away).

McCloskey did not seem interested in paying. Instead, he posted the letter to Facebook, claiming that the photographer "stole a photo of us."

This made my day: the photographer that trespassed into my neighborhood and stole a photo of us has sent us a bill!!!!! Now be